Issues concerning libraries and the law - with latitude to discuss any other interesting issues Note: Not legal advice - just a dangerous mix of thoughts and information. Brought to you by Mary Minow, J.D., A.M.L.S. [California, U.S.] and Peter Hirtle, M.A., M.L.S. Follow us on twitter @librarylaw

The answer to the headline of this article is “Yes, but…” and the “but” portion of the answer makes establishing a “Use Policy” for allowing some but not unrestricted public use of library property a challenge for library administrators. Such a Policy must be devised to take into consideration the needs of the community, the ideas of the members of the library board and the requirements of the First Amendment of the U.S. Constitution. Library administrators should be forewarned that to help avoid legal challenges, it is a task that should not be completed without the assistance of a skilled library law attorney.

Minow take: There's one aspect of the article that I think is unclear. It says that in the Ohoopee decision, the court determined that

"removing all but governmental and library-approved publications from the lobby table to re-establish decorum by avoiding controversy and emotional reactions from the community and the possibility of litigation would satisfy the First Amendment despite the fact that the precipitating factor was the desire to remove a particular magazine."

First, despite all kinds of exploration about the nature of the front-lobby forum in a library, in the end the decision says it only reaches a narrow issue. The issue is whether a library can constitutionally close a "hybrid limited/ non-public forum for free expression in its front lobby," even with censorious intent, where the resulting effect is content-neutral. It concludes that it can. Second, the term "library-approved" sounds like the library has carte blanche to decide what it can remove. Even though I read the decision as one that wished to give great latitude to the library (ratcheting down to "rational review" at least in a front lobby where there is a "captive audience," the library would not have the latitude to decide arbitrarily what can stay and what must go, particularly if the decision is based on the viewpoint of the publication. The opinion discusses the desire to allow libraries to uphold a certain standard of decorum. While that makes sense, it seems mighty murky to me, since its hard to apply consistently, an important objective in order to avoid standardless discretion by a public official. Luckily, the holding confined itself to the narrower question about closing a forum.